Independence of the Commissioner: for Political Non-Interference

Today, I would like to re-examine a significant change in 2007, that is, when the Legislative Assembly amended the French Language Services Act to create the position of Commissioner, and in turn the Office of the French Language Services Commissioner.

That was five years ago, at a time when the province’s legislators wanted to breathe new life into the Act in order to ensure that it would be fully complied with, and in particular to realize its two-fold objective of protecting Ontario’s Francophone minority and the advancement of French by means of promoting its equality to English, as described previously. The creation of this position was therefore largely perceived by the Franco-Ontarian community to be a necessary step in the right direction.

However, there was also some criticism in 2007, including by the official Opposition which, while happy about the appointment of the current Commissioner to that position, complained about the fact that he would report directly to the Minister Responsible for Francophone Affairs and not to the Legislative Assembly, like other officers of Parliament. According to that criticism, this situation meant a lack of transparency, since the investigator was asked to report directly to the institution that could be the subject of his or her investigation.

The New Democratic Party subsequently made it a key issue and introduced Bill 193 in May 2011 and then Bill 49 in March 2012, to have the Commissioner report directly to the Legislative Assembly. This question was also raised during the campaign leading up to the election held in October 2011, and at that time the government did not shut the door on the possibility of granting the Commissioner real independence.

I had often been asked to address this issue, but until now I did not wish to share his opinion, mainly in order to avoid becoming involved in an electoral issue. However, since that vote is now in the past, and after having spoken directly with representatives of the three parties in the Legislative Assembly, I consider that it is my duty to provide the government with my opinion, as required by the Act.

Thus, as I state in my 2011-2012 Annual Report, I firmly believe that the position of French Language Services Commissioner should report directly to the Legislative Assembly. Here is the reason why.

From the beginning of my mandate, I have had a level of independence that honours the current Minister Responsible for Francophone Affairs. In fact, I have been granted the independence that I need to set up my office, to establish the limits of my mandate and for all other activities of my office.

However, all this could change dramatically at any moment if even a single person were to be replaced at the political or administrative level, for instance either the Minister Responsible for Francophone Affairs or the current Commissioner. This is because the position of Commissioner requires that this person have the ability, desire and necessary resolve to stay the course on the effective implementation of the French Language Services Act.

It is important, if not essential, for this person to be given the elbow room required to carry out his or her mandate. This means allowing the Commissioner to act on the basis of acquired knowledge, observations and independent thinking. The fact that one’s position relies upon the political ups and downs of the day does not provide the necessary independence to fully carry out one’s mandate.

To appreciate the fragile nature of a position that reports to a minister instead of a Parliament or the legislature there is no need to look very far. One should remember the episode at Statistics Canada last year, when the minister responsible for that federal agency quickly reminded everyone, including, and in particular, senior officials at that organization, that they reported to a minister and were not, in fact, independent, contrary to what many may have believed over several decades. The Chief Statistician at the time, it should be remembered, had to resign.

In the following weeks, I will go over other reasons that describe why it is crucial for the Commissioner to become independent.